Friday, August 6, 2010

Proposition 8 and Judges

I've been churning over some of the implications of the Proposition 8 decision and the attempt to normalize homosexual marriage. Couple of initial thoughts:

1. Some of the comments in the ruling of the judge make it clear that language evolves and therefore the definition of marriage can evolve. So just as we overcame racial prejudice in marriage we must therefore overcome gender prejudice. I think there is some question begging here to say the least. More on that later (maybe).
1.1 There needs to be some discussion here of metaphysics, ontology, language and social construct.

1.2 Frank Turk has some interesting comments and links to some articles by Sam Schulman (e.g. here, here, and here). Which basically gets to my point about metaphysics, 'nature', and ontology. The arguments are deeper than just endorsing "liberty".

2. I'm more concerned with Biblical arguments. In a culture that rejects Biblical authority, this makes our arguments more difficult--although I do think we should seek to be persuasive at all levels. On the Biblical arguments see: here, here, here, and here.

3. I've been ponder if Kuyper's "sphere sovereignty" is helpful at all in these issues. Since Kuyper distinguishes 3 spheres of church, family and government and now government has stepped in a redefined family (or at least the marriage part)--is there another line of argument that can be pursued here?

4. I find this more than a bit ironic:
In fact, Judge Walker was first appointed to the federal bench by President Ronald Reagan in 1987, at the recommendation of Attorney General Edwin Meese III (now the Ronald Reagan Distinguished Fellow in Public Policy and Chairman of the Center for Legal and Judicial Studies at the Heritage Foundation). Democratic opposition led by Sen. Alan Cranston (D-CA) prevented the nomination from coming to a vote during Reagan’s term. Walker was renominated by President George H. W. Bush in February 1989. Again the Democratic Senate refused to act on the nomination. Finally Bush renominated Walker in August, and the Senate confirmed him in December.
What was the hold-up? Two issues, basically. Like many accomplished men of the time, he was a member of an all-male club, the Olympic Club. Many so-called liberals said that should disqualify him for the federal bench. People for the American Way, for instance, said in a letter to Judiciary Committee chair Joe Biden, “The time has come to send a clear signal that there is no place on the federal bench for an individual who has, for years maintained membership in a discriminatory club and taken no meaningful steps to change the club’s practices.”
The second issue was that as a lawyer in private practice he had represented the U.S. Olympic Committee in a suit that prevented a Bay Area group from calling its athletic competition the Gay Olympics.
Because of those issues, coalitions including such groups as the NAACP, the National Organization for Women, the Human Rights Campaign, the Lambda Legal Defense Fund, and the National Gay and Lesbian Task Force worked to block the nomination.
In other words, this “liberal San Francisco judge” was recommended by Ed Meese, appointed by Ronald Reagan, and opposed by Alan Cranston, Nancy Pelosi, Edward Kennedy, and the leading gay activist groups. It’s a good thing for advocates of marriage equality that those forces were only able to block Walker twice.
(HT: CATO@Liberty; emphasis mine)

5. Speaking of judges, this does become a basic illustration of 'everyone doing what is right in their own eyes.' The argument is essential root in a semblance of "liberty" in the pursuit of not being deprived of their "right" to pursue happiness.

6. While I agree with Al Mohler's Biblical arguments, I am not quite sure that this is simply an example of a judge "legislating from the bench." He writes:
"A single unelected judge nullified the will of the voters of California as expressed through the electoral process. Those who have been arguing that judicial activism is a fiction will have to look this decision in the face. The New York Times celebrated Judge Walker’s usurpation of the political process, arguing that “there are times when legal opinions help lead public opinions."" (source)
6.1 I don't agree with the judges ruling, the excerpt Mohler provides and what I have read is disconcerting (like I said: more on that later, maybe). But some of the arguments in the ruling and some of the amicus briefs I skimmed were rooted in a conception of liberty that cannot be infringed upon. There are arguments against these but I don't think "legislating from the bench" as a war cry is entirely helpful on counter all of the arguments. 

6.2. The 'legislating from the bench' and 'nullified the will of voters' can be a double edged sword. We are a republic not a mere democracy--so just because it was the will of the majority doesn't automatically mean it was right (although in this case it was morally right, and I agree with Mohler here). The problem is the time will come in the future where we are looking to the fact that we are a republic to protect us as Christian from will of the democracy.

Similar to those Christians who are vigorous opposing the so-called Grounds Zero mosque--and there may be good reasons to oppose it, particularly for the symbolism it will have in radical Islam--but how we argue legal for such opposition may come back to bite Christian when we start arguing in the future for the right to place a church here or there. Are there differences? Absolutely. Will that matter? Probably  not. I'm just saying we should be wary of the type of argument that can be and will most likely become a double edged sword.

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Just some thoughts
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